Boregowda, Vs Kempaiah

KEMPAIAH S/O. MADAIAH AGED ABOUT 65 YEARS R/O. TOPPINAGATTA 3^RD CROSS, MAHADESHWARA NILAYA, WARD NO-13 VIDYANAGARA POST (HARIGE) SHIVAMOGGA - 577 201.

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…RESPONDENT

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THIS RSA IS FILED UNDER section 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.07.2025 PASSED IN RA.NO.18/2023 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.01.2023 PASSED IN OS.NO.36/2019 ON THE FILE OF IV ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is preferred by the appellant-defendant challenging the judgment and decree dated 15.07.2025 passed in RA.No.18/2023 by II Additional Senior Civil Judge and JMFC, Shivamogga, confirming the judgment and decree dated 13.01.2023 passed in O.S.No.36/2019 by IV Additional Civil Judge and JMFC, Shivamogga, where the suit for possession came to be decreed in favour of the respondent-plaintiff.

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Parties shall be referred to as per their ranking before the trial Court.

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Facts of the case are as under

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The plaintiff instituted a suit against the defendant seeking recovery of vacant possession of the schedule ‘B’ property along with arrears of rent and damages.

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3.1 It is the case of the plaintiff that he is the

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absolute owner of the schedule ‘A’ and ‘B’ properties described in the plaint schedule. Schedule ‘A’ property consists of two portions. In one portion, the plaintiff has constructed a residential house in which he is residing and in the other portion, the plaintiff has constructed eight houses, comprising four houses on the ground floor and four houses on the first floor. schedule ‘B’ property is part and parcel of the schedule ‘A’ property.

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3.2 It is further stated that the defendant came into possession of the schedule ‘B’ property as a tenant, the same being situated on the ground floor. The plaintiff is the landlord and the defendant is his tenant in respect of the schedule ‘B’ property under an oral tenancy agreement. The defendant commenced occupation of the schedule ‘B’ property as a tenant from 01.01.2010 on a monthly rent of ₹3,500/-, in addition to the water charges of ₹150/- per month and had paid an advance amount of ₹30,000/- to the plaintiff.

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3.3 It is further stated by the plaintiff that the

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defendant has been a tenant in respect of the schedule ‘B’ property from 01.01.2010 and had been regularly paying the monthly rent to the plaintiff upto December 2017. Thereafter, from January 2018, the defendant became a chronic defaulter in payment of monthly rent to the plaintiff. Despite repeated requests made by the plaintiff to pay the arrears of rent from January 2018 onwards, the defendant failed to pay the same. On the contrary, instead of paying the rent, the defendant started threatening the plaintiff and made false allegations against him.

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3.4 This being the state of affairs, on 05.10.2018,

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the plaintiff requested the defendant to pay the arrears of rent amounting to ₹36,000/-, failing which, he would lodge a complaint against the defendant. At that time, the defendant represented that he would clear the arrears of rent. However, taking advantage of the plaintiff’s situation, the defendant started threatening him with dire consequences and abused him in filthy language.

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Consequently, the plaintiff lodged a complaint before the Rural Police, Shivamogga, against the defendant. Pursuant to the said complaint, a case was registered in Crime No.511 of 2018 for the offences punishable under Sections 341, 504 and 506 of the IPC. In the said complaint, the defendant has admitted that he is a tenant under the plaintiff in respect of the schedule ‘B’ property, thereby acknowledging the relationship of landlord and tenant.

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3.5 It is further stated that the plaintiff got issued a legal notice dated 27.10.2018, terminating the tenancy and calling upon the defendant to hand over vacant possession of the schedule ‘B’ property. The defendant was also called upon to pay arrears of rent from January 2017 to October 2018 at the rate of ₹3,500/- per month in addition to the water charges of ₹150/- per month, after adjusting the advance amount of ₹30,000/-.

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3.6 Despite receipt of the legal notice, the defendant issued a reply dated 02.11.2018. In the said reply, the

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defendant admitted that the plaintiff is the owner of the suit schedule property. However, the defendant contended that he came into possession of the schedule ‘B’ property on 05.03.2012 as a usufructuary mortgagee and not as a tenant and that he had paid a sum of ₹2,50,000/- to the plaintiff. It is further contended by the defendant that he had paid a total sum of ₹11,00,000/- towards the mortgage of the schedule ‘B’ property and that he has been residing in the property as a mortgagee and not as a tenant.

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3.7 In view of the defendant having failed to comply the demands made in the legal notice, including delivering vacant possession of the schedule “B” property and payment of arrears of rent, the plaintiff was constrained to institute the present suit against the defendant for recovery of possession and arrears of rent.

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3.8 Upon summons being issued in the suit, the defendant appeared before the Court and filed his written

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statement, reiterating the same contentions as taken in

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the reply notice and sought for dismissal of the suit.

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3.9 On the basis of the pleadings and rival contentions made by both the parties, the trial Court framed the following issues for consideration:

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"1. Whether the plaintiff proves that, suit ‘B’ schedule property is the part and parcel of the suit ‘A’ schedule property?

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2. Whether the plaintiff proves that, the plaintiff and defendant had landlord and tenant relationship over the suit ‘B’ schedule property?

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3. Whether the plaintiff proves that, he is entitled for arrears of rent of Rs.91,250/- from January 2017 to January 2019?

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4. Whether the plaintiff proves that, he is entitled for damages of Rs.7,300/- per month from 05.04.2018 till eviction?

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5. Whether the defendant proves that, he is the absolute owner and possession and enjoyment of the suit ‘B’ schedule property in view of the notice dated: 20.10.2018 and reply notice dated: 02.11.2018?

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6. Whether the plaintiff is entitled for the relief as prayed for?

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7. What order or decree?"

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3.10 In order to substantiate the issues and to establish the case, the plaintiff examined himself as PW.1

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and got marked 16 documents as per Exs.P1 to P16 on his behalf. Whereas, defendant examined himself as DW.1 and got marked 2 documents as per Exs.D1 and D2.

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3.11 Based on the materials placed on record, both oral and documentary, the trial Court, upon consideration of the issues and the evidence adduced by the parties, came to the conclusion that the plaintiff had proved his ownership over the suit schedule property. The trial Court accordingly answered all the issues in favour of the plaintiff. It also took note of the admissions elicited in the cross-examination of DW.1, wherein DW.1 admitted that he was a tenant in respect of the schedule ‘B’ property.

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3.12 Based on the said findings, the trial Court decreed the suit of the plaintiff with costs and directed the defendant to vacate and deliver the vacant possession of the schedule ‘B’ property in favour of the plaintiff within 30

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days from the date of the order. It was further ordered that in the event of the defendant failing to comply, the plaintiff would be at liberty to evict the defendant and take the possession of the suit schedule property in accordance with law. The trial Court also held that the plaintiff is entitled to arrears of rent from January-2018 to January2019 till filing of the suit and is further entitled to damages from 05.11.2018 to till the date of delivery of vacant possession of the schedule ‘B’ property.

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3.13 Being aggrieved by the impugned judgment and decree of the trial Court, the defendant preferred an appeal before the first Appellate Court in R.A.No.18/2023.

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3.14 The first Appellate Court, after issuing notice to the respondent and on consideration of the materials placed before the trial Court as well as the first Appellate Court in order to re-appreciate and re-analyse the entire materials available on record and hearing the arguments

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of the learned counsel for both the parties, formulated the

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following points for consideration:

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"1. Whether the plaintiff is established jural relationship between himself and defendant with respect to B schedule property?

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2. Whether the trial Court has erred, arbitrary and without considering the facts, holding that, the suit of the plaintiff's is decreed?

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3. Whether the impugned judgment and decree of the trial Court under appeal warrants interference by this Court?

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4. What order?"

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3.15 The first Appellate Court, upon re-appreciation

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and re-consideration of the entire material available on record before the trial Court as well as upon hearing the arguments of the learned counsels for both parties, considered the contentions raised in the appeal, particularly with regard to the plea of usufructuary mortgage and the alleged payment of ₹11,00,000/towards the sale of the property.

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3.16 The first Appellate Court re-considered the

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matter and came to the conclusion that the defendant had failed to establish his defence or disprove the case of the plaintiff, particularly in view of the fact that the defendant had admitted and did not dispute the relationship of landlord and tenant. Though the defendant had denied the relationship of landlord and tenant in the written statement, in the course of cross-examination he categorically admitted the said relationship.

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3.17 Taking note of this admission and upon reappreciation of the entire evidence, including the plea of usufructuary mortgage, the first Appellate Court did not find merit in the contentions of the defendant. Accordingly, the appeal was dismissed and the judgment and decree passed by the trial Court was confirmed. The first Appellate Court also held that the defendant neither produced any document to substantiate the alleged mortgage nor placed on record any registered instrument, nor examined any attesting witness to prove the due

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execution of the alleged mortgage deed. It was also concluded that the defendant had not produced any document to show that he had instituted any suit against the plaintiff seeking enforcement of the alleged agreement, as referred to in Ex.P6 - Legal notice dated 20.10.2018.

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3.18 There is nothing on record to establish that the defendant was in possession of the schedule ‘B’ property as a mortgagee or that the plaintiff and his wife had agreed to alienate the said property in favour of the defendant upon receipt of ₹11,00,000/-. Further, no material evidence has been elicited in the crossexamination of PW.1 with regard to the execution of any agreement of sale or mortgage deed. In view of the same, the first Appellate Court did not find merit in the contentions and arguments advanced on behalf of the defendant and accordingly, dismissed the appeal, confirming the judgment and decree passed by the trial Court.

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3.19 Aggrieved by the same, the defendant is before this Court in this second appeal.

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It is the vehement contention of the learned counsel for appellant–defendant that the trial Court as well as the first Appellate Court have committed a gross error in not adjudicating the suit and the appeal on the basis of the pleadings and the material on record. It is therefore contended that the judgments rendered by both the Courts are illegal, perverse and arbitrary.

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4.1 It is also the vehement contention of the learned counsel for appellant–defendant that an application under Order XLI Rule 27 of CPC was filed seeking to produce additional documents pertaining to the alleged mortgage transaction. However, the first Appellate Court has neither considered nor adjudicated upon the said application. It is contended that once such an application is filed, it is incumbent upon the first Appellate Court to examine the same and if found necessary, either take the additional

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evidence on record or permit the appellant to adduce such evidence or in the alternative, remand the matter to the trial Court for that purpose. The failure of the first Appellate Court to consider the said application, it is urged, constitutes a serious error, rendering the impugned judgment illegal and perverse and therefore liable to be set aside. Hence, he seeks to allow this appeal. Consequently, to frame the substantial questions of law urged in the appeal memo.

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4.2 Learned counsel for appellant–defendant has placed reliance on the judgment of the Hon’ble Apex Court in the case of Satish Chand Surana v/s Raj Kumar

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Meshram reported in LAWS(SC)-2021-12-121 .

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At this stage, this Court is not inclined to issue notice to the respondent. This Court also finds no grounds to show any indulgence in the present appeal or to interfere with the judgments of the trial Court as well as

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the first Appellate Court. Accordingly, issuance of notice to

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the respondent is dispensed.

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Heard learned counsel for appellant-defendant and learned counsel for respondent-plaintiff. The points that arises for consideration are:

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"1. Whether the trial Court and the first Appellate Court have committed any illegality or perversity or have failed to consider any material evidence on record while passing the impugned judgments and decrees?

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2. Whether interference is warranted in the present appeal?"

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Apparently, it is not in dispute that the plaintiff is the absolute owner of the suit schedule property. It is also not in dispute that the defendant is in occupation of a portion of the schedule ‘B’ property. Though the defendant has denied in the written statement, that he entered into possession of the schedule ‘B’ property as a tenant, he has contended that he is in possession thereof as a mortgagee, having paid a certain mortgage amount. The

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defendant has further asserted that the plaintiff had agreed to sell the suit schedule property and that the plaintiff and his wife received a sum of ₹11,00,000/towards the sale consideration, but subsequently refused to execute the sale deed in his favour.

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It is pertinent to note that when such a specific defence was taken by the defendant in the written statement and even earlier in the reply notice, the same constituted the best piece of evidence which the defendant was expected to substantiate before the trial Court. However, the defendant has failed to produce any documentary evidence in support of the said plea. Only two documents have been produced, namely, Ex.D1 - Certified copy of the FIR and Ex.D2 - Copy of the electricity bill along with a receipt. No other document has been placed on record by the defendant before the trial Court.

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It is further relevant to note that in the cross-

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examination of DW.1, the trial Court has observed in para-38 as under:

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"Para-38: Further, it is very pertinent to mention here that, defendant who has got examined as DW-1 has categorically admitted in his cross examination as follows;

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"£Á£ÀÄ ¨ÁrUÉ EgÀÄªÀ ªÀÄ£ÉAiÀÄ CPÀÌ ¥ÀPÀÌzÀ°è MlÄÖ JµÀÄÖ ªÀÄ£ÉUÀ¼ÀÄ EªÉ JAzÀgÉ, ¸ÁQëAiÀÄÄ 4 ªÀÄ£ÉUÀ¼ÀÄ EªÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. £Á£ÀÄ ¸ÀzÀj ªÀÄ£ÉUÉ §AzÀÄ JµÀÄÖ ªÀµÀð DVzÉ CAzÀgÉ 11 ªÀµÀð JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."

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On plain reading of the above said admission made by the DW-1 it crystal clear that, he himself impliedly admitted that, he is tenant under the plaintiff over the alleged suit 'B' schedule property."

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Having taken note of this aspect in the crossexamination of PW.1, the trial Court has come to the conclusion that there is a clear admission on the part of the defendant, elicited during the cross-examination, with regard to his status as a tenant and the identity of the neighbouring property. On that basis, the trial Court proceeded to decree the suit of the plaintiff.

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Having considered the submissions of the learned counsel for the appellant–defendant, it would be relevant to extract the provisions of Order XLI Rule 27 of CPC, which reads as under:

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"27. Production of additional evidence in Appellate Court .-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

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(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

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(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

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the Appellate Court may allow such evidence of document to be produced, or witness to be examined.

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(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

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Upon a careful perusal of the said provision, it is relevant to note that an application filed under Order XLI Rule 27 of CPC does not confer any inherent or automatic right upon the appellant to have additional documents received in evidence by the first Appellate Court. The provision itself makes it clear that the parties to an appeal are not entitled to produce additional evidence, whether oral or documentary, as a matter of course. However, such additional evidence may be permitted only in exceptional circumstances, as specifically enumerated under Order XLI Rule 27(1) Clauses (a), (aa) and (b) of CPC.

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Upon a careful perusal of these provisions, it is apparent that an additional evidence may be permitted if

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the trial Court, against whose judgment the appeal is preferred before the first Appellate Court, has refused to admit evidence which ought to have been admitted.

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In such circumstances, an application may be filed before the first Appellate Court and upon consideration thereof, if the first Appellate Court finds that the evidence was not considered by the trial Court, it may permit such documents to be taken on record and admitted as additional evidence. It is further specifically provided that a party seeking to produce an additional evidence must establish that, notwithstanding the exercise of due diligence, such evidence was either not within his knowledge or could not be produced at the time when the decree appealed against was passed. Only upon such satisfaction can the first Appellate Court permit the production of such additional evidence.

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In the present case on hand, it is the specific case of the appellant–defendant that there existed a

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mortgage transaction and that certain amounts were paid thereunder, as pleaded both in the reply notice and in the written statement. When such was the defence, the mortgage deed and related documents constituted the best evidence, which ought to have been produced by the defendant before the trial Court.

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Having failed to produce such evidence at the first instance, the appellant–defendant cannot be permitted to derive any advantage at the appellate stage. No satisfactory explanation has been forthcoming as to why such documents, which constituted the best evidence, were not produced before the trial Court. All these aspects have been duly considered by the first Appellate Court while adjudicating the matter on hand. Furthermore, even if the said contention of the learned counsel for appellant– defendant is accepted, at the highest, it would only establish that a certain amount had been paid. In such an event, it was open to the appellant–defendant to seek recovery or refund of the said amount as a matter of right,

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either by way of a counterclaim in the suit or by initiating independent proceedings against the respondent–plaintiff. However, no such counterclaim has been made before the trial Court, nor has any separate suit been instituted for recovery of the alleged amount. All these aspects have been duly dealt with by the first Appellate Court in its wellreasoned judgment.

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Based on the oral and documentary evidence on record, the trial Court was satisfied that the plaintiff had established his case and accordingly, decreed the suit. The first Appellate Court, upon re-appreciation and reconsideration of the entire material on record, did not find merit in the case of the appellant–defendant. Consequently, it dismissed the appeal, concurred with the findings of the trial Court, and confirmed the judgment and decree passed therein. Therefore, the appellant– defendant, having failed to produce the best available evidence at the earliest point of time, despite having taken a specific plea in the reply notice as well as in the written

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statement, cannot now be permitted to seek any advantage at the appellate stage. In the absence of any satisfactory or cogent explanation for such non-production before the trial Court, the appellant–defendant is not entitled to the relief now sought in this appeal, nor to the framing of any substantial questions of law. This Court does not find any good ground or cogent reason made out by the learned counsel for appellant–defendant to frame substantial questions of law as urged in the appeal memorandum. Further, this Court is not persuaded to accept the reliance placed on the judgment of the Hon’ble Apex Court in the case of Satish Chand Surana stated supra , as the same is not applicable to the facts and circumstances of the present case.

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Accordingly, I pass the following:

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ORDER

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This appeal is dismissed at the stage of admission itself, as this Court does not find any good ground to formulate any substantial questions of law.

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